WOW: Harvard Professor wins: court must appoint a special prosecutor to challenge Arpeio pardon!

[hlthe2b]

Link to tweet

Thank Prof Laurence Tribe for the hat/tip and for Professor Andrew Crespo for taking this on

https://takecareblog.com/blog/appoint-a-special-prosecutor-not-an-amicus-to-challenge-arpaio-s-pardon

Last Thursday, I wrote an op-ed in The Boston Globe urging the judge presiding over Joseph Arpaio’s criminal contempt case to appoint a special prosecutor who could challenge the constitutionality of Arpaio’s pardon. A collection of advocacy groups, led by the lawyers at Protect Democracy, has now followed through on that idea, filing an amicus brief requesting such an appointment. You can read the filing (on which I informally consulted) here.

For the reasons that I laid out in The Globe, I think Judge Bolton should accept the amici’s suggestion and appoint a special prosecutor, thereby ensuring that the novel constitutional questions surrounding the pardon receive full adversarial testing. Indeed, as Protect Democracy’s brief notes, the Federal Rules of Criminal Procedure suggest that “the court must appoint another attorney to prosecute [a] contempt” case whenever the Department of Justice declines or abandons such a prosecution, as the Department has now done in this case in the wake of the President’s intervention. snip--

n short, the court’s authority to appoint a special prosecutor in this situation is clearly established. And if the ultimate goal is to ensure that the novel issues surrounding the pardon receive adversarial testing—throughout the full course of the judicial process—then a special prosecutor, not a court-appointed amicus, is the only way to go.

[Scurrilous]

1. K&R

[tblue37]

2. K&R for visibility. nt

[UTUSN]

3. Let's just give this a Big Rec #5 & K

[Pluvious]

4. Kicking your pardon...

[Nitram]

5. Yes!

[FakeNoose]

6. What would happen if the pardon is nullified?

This could have far-reaching repercussions.

Asking for a friend.

[BoneyardDem]

34. I am asking the same question

for someone who is not my friend.

badda bing *schmishhhh*

[BobTheSubgenius]

7. I hope that miserable SOB gets to spend his last days in his own desert ghetto.

Ultra-authoritarian asshat.

[GeorgeHayduke]

25. Wearing nothing more than pink panties.

I'm headed back to Maricopa County in a few days and feel better about it now than I did when I lived in PHX previously (when he was deputizing still). I avoided the unincorporated areas like Guadalupe. Sherriff Joe scared me, and I'm white. I just stayed in town or took my chances with DPS on the 10 or 17.

Aside: many Phoenix, Tempe and Chandler cops are pretty chill.

[triron]

8. Hot damn! What are the implications for other possible pardons??

[Takket]

9. so... they want to argue the constitutionality of the pardon?

The pardon has no constitutional requirement or condition. So what argument are they intending to make????

[hlthe2b]

11. Here's the link to the full brief... High powered attorneys behind this so it is not a stunt.

https://protectdemocracy.org/update/protect-democracy-legal-experts-ask-ninth-circuit-take-validity-arpaio-pardon/

[Blue_true]

12. Apiao has not admitted wrongdoing (being guilty).

A condition for a pardon is the convicted person must accept that he or she was guilty and show genuine remorse.

[GeorgeHayduke]

26. Exactly.

As I understand it, a pardon carries with it the record of a plea of guilt, a conviction and sentence. Not that Joe has many prospects to explain his criminal record to.

Still, an interesting fact.

[unblock]

10. if i'm reading this right, all this likely means is more procedure to uphold the pardon.

all it's really saying is that the prosecutor shouldn't have just said, oh, i hear there's a pardon, so i'll drop the charges.

so now a special prosecutor will pursue the charges in order to force arpaio to actually use the pardon in court and then this will be challenged and higher courts will opine on whether the pardon is constitutional or not.

arpaio will go to the supreme court if need be.


i won't hold my breath waiting for this supreme court to knock down a presidential pardon from a republican president.

[hlthe2b]

13. Did you read the full brief?

https://protectdemocracy.org/update/protect-democracy-legal-experts-ask-ninth-circuit-take-validity-arpaio-pardon/

[unblock]

17. i only skimmed it, but the interesting subsequent arguments aren't there

the brief is merely arguing the first step -- getting a special prosecutor assigned so the case can proceed up the chain.

the real questions won't be asked until it gets to a court of appeals. the briefs there will be the interesting ones that have the meat of the constitutional questions.

this is merely a procedural question at this point.

[Volaris]

32. Seems to me like the president can issue any pardons he wants...

But if the RECIPIENT of said pardon won't admit guilt for the crime that the pardon is predicated on, the president may as well have signed it from from the rose garden on thanksgiving day (as it's worthless and carries no legal weight or import).

This is about getting Sherrif White Racist Asshole to admit IN COURT that he's an Asshole (if he wants to be legally protected from the consequences of his Assholery).

[unblock]

35. People make too much of what I think is mere dicta

Pardons can and have been used to free genuinely innocent people.

Yes there was a Supreme Court case where the deciding opinion said that accepting a pardon implies an admission of guilt, but the outcome of even that opinion didn't depend on that statement. Try telling people who were exonerated on dna evidence that they can be free if they admit they did it.

In this case, arpaio readily admits he violated a court order, he thinks it's something to be proud of, so it's really a non-issue.

In any event, he doesn't have to admit anything. He just has to produce the pardon and move to have the charges dismissed.

[Goodheart]

14. Inasmuch as Arpaio's conviction was for violating a court order,

rather than for some pre-court crime such as murder or treason, and rather than some jury conviction, this review has more than a snowman's chance in hell of passing muster.

If a court can't enforce its own rulings then there is no judicial branch independence from the executive branch and no constitutional separation of powers.

This one might go all the way up to the Supremes.... and inasmuch as it's their own independence under attack they just might rule to strike the pardon.

[hlthe2b]

16. Yes... THIS is how I interpret it

[Takket]

20. ok... that makes sense..........

not sure how much water it holds but i will root for a victory to send that scumbag back up the river

[Goodheart]

22. It's a long shot, but it has a chance because the judiciary will rule upon an attack upon themselves

[yortsed snacilbuper]

15. Kick

[argyl]

18. Put him in pink panties busting rocks in the 112 degree June Phoenix sun.

And give him a nice plastic tent to sleep in.

The asshole reveled in being "the toughest sheriff in the West." And was fine in using cruel and unusual punishment to bolster his rep.

He's one sick, sadistic bastard and he richly deserves a taste of what he'd been so gleefully dishing out for decades.

[vsrazdem]

19. From my earlier understanding, Arpaio wants the verdict wiped as if it never happened. He wants

the guilty verdict to be repealed. He feels because he has been pardoned, there should not be a verdict at all, because he had had not been sentenced by the time he got the pardon, and the judge here in Arizona refused to do this.

[mountain grammy]

21. This is a nice surprise!

[struggle4progress]

23. This may do less than you suggest

The order is here

On pardon, Arpaio wanted the prosecution dismissed AND the conviction vacated

The court granted the first request but denied the second. Arpaio appealed the denial. Sessions' DoJ then indicated that the government would not defend against the appeal. The task of the special prosecutor, as I understand it, is simply to defend the appeal. What is at issue seems to be settled law: a pardon does not vacate a conviction

[hlthe2b]

24. Even if it only successfully maintains the conviction, that's something...

I think some of these issues will come up as well, in terms of the actual pardon. If nothing else it will further wrap that ugly racist pardon around Trump's neck and the Republicans as well, prior to the 2018 midterms.

[malaise]

27. This is huge

Rec

[SleeplessinSoCal]

28. Is Scooter up next?

I hope.

[Azathoth]

29. Criminal contempt is just a crime, like any other

It's not something that courts came up with by themselves. There are statutes, both federal and state, that make it a crime and give courts the authority to prosecute it as such. Pardoning a contempt conviction is like pardoning any other crime. Does that pose a risk to the civil rights of others? Sure. Trump could also pardon Dylan Roof. It would be a horrendous assault on civil rights and an open message to racists everywhere that equal protection is dead, but it would be constitutional.

I hate to say it, but this action is going nowhere. The President's pardon power is plenary. Elections have consequences.

[hlthe2b]

30. No... Dylan Roof was charged/convicted both State & Federally... Trump CAN NOT pardon State charges

Roof was sentenced to nine life sentences after pleading guilty to state murder charges.

He was likewise sentenced to death on Federal charges.
So, the best Trump could do is prevent his execution. He (Roof) would still face multiple life sentences on the state charges.

The Arpaio contempt charge is a Federal charge, which Trump pardoned for Arpeio. However, the judge can not vacate the conviction and that's what Arpaio wants. Pardons are not expungements, but merely restore some rights that would have been lost with the conviction and prevent having to serve any levied jail sentence. But only a win on appeal can vacate the conviction, which the pardon short-circuited, if Arpaio truly meant to appeal. US District Judge Susan Bolton ruled that the conviction stands as would normally be the case with a pardon, but DOJ refuses to defend that decision on appeal. Thus, this action ensures the action of this Federal Judge WILL be defended and thus, Arpaio's conviction regardless of pardon, stands.

These are very different legal issues.

[Azathoth]

31. I don't understand why people deliberately miss the point

I didn't claim that Trump could pardon Roof for state crimes. I said he could pardon him, and I assumed you would read that in good faith and understand I meant for federal crimes. The point is that pardoning Roof would be constitutional despite its civil rights implications.

Arpaio never had a final judgment entered in his case since he never had a chance to appeal. The pardon rendered his case moot, and the DOJ argued (correctly, I think) that it is standard practice to vacate any orders in a case that becomes moot. Bolton, who was clearly pissed over the pardon, refused on the principle that she was under no obligation to alter the historical record. I suspect she may eventually get reversed.

None of that, however, has anything to do with what's going on here. If you haven't already, I suggest you read the original Protect Democracy letter that lays out the arguments at the heart of this current action. None of them have anything to do with what you wrote. The issue here is the validity of the pardon itself. Protect Democracy is arguing that the pardon may be unconstitutional. As I wrote above, it isn't. The pardon power is plenary, and criminal contempt can be pardoned like any other crime.

[hlthe2b]

33. Miss point? For Dylan Roof to be pardoned for Fed crimes is irrelevent. State life sentence holds

... the contrary seemed to be what you were implying so I naturally assumed you were confused. It was not my intention to embarrass you.

[Azathoth]

36. In other words, my point went right over your head n/t

[hlthe2b]

37. You know, when one feels misunderstood, it is usually better to try to more clearly make your point

than attack the audience.... especially with condescension.

[Azathoth]

38. The point of my original post was quite clear

and I'm happy to let everyone else read it and decide for themselves. I'm willing to bet that most of them aren't going to come to the conclusion that I was arguing Trump could pardon Roof for state crimes. (Incidentally, Roof is currently in federal prison awaiting a federal death sentence. How you would assume a presidential pardon in his case referred to state crimes is a mystery to me.)

[hlthe2b]

39. Roof has not received a pardon, so why would he NOT be in a Federal cell. Again, you make no sense

But, since you seem only to want to insult, let's just call it a day.